Re: Constitutional Challenge to (C) Code

Robert Cumbow <cumbr[_at_]perkinscoie.com> wrote:
>
> Referring to Amy Stoller's <redherring[_at_]tuna.net> signature block,
> John Logie <antrobus[_at_]ripco.com> wrote:
> >
> > I can only assume that the "ghoti" which you are invoking is an uncited
> > reference to George Bernard Shaw's discussion of English spelling, in
> > which he demonstrated that "ghoti" was an acceptable alternative
> > phonetic spelling of "fish." Given that Shaw died in 1950, and given
> > your enthusiasm for a lengthy term of copyright, I think your use of
> > the Shavian reference ought to be suspended until 2020 - seventy years
> > after Shaw's death. Alternatively, you might consider writing the
> > Shaw estate (or the appropriate assignee), and asking them whether
> > they have any objection to your use of one of Shaw's most famous, and
> > therefore, most valuable copyrighted works.
>
> Does Mr. Logie really believe that a single five-letter word, no matter
> how original, is protected by copyright?

Dear Mr. Cumbow -

Mr. Logie worries that in our current context it might be possible for the Shaw estate to successfully argue that GHOTI is (c) G.B. Shaw. A sympathetic judge (or group of judges) has sometimes produced a result every bit as startling. For example, Salinger v. Random House provides a clear illustration of how much deference is given to an author's complaint of undue appropriation - even when that appropriation would seem a fair use supposedly "protected" under Section 107. My hope, of course, is that a "Shavian" assertion of copyright for this five-letter gem would be laughed out of court. But my fear is that a well-funded copyright holder or estate -- with effective counsel -- could effectively extend copyright's reach well beyond its expected limits. If you can assure me that such a result is impossible under current law, I will be most grateful.

But because Ms. Stoller is on record as wanting more and longer protection for the heirs and assigns of artists, I am encouraging her to pursue the path she recommends for all of us. I'd like for her to determine whether her appropriation of Shaw's word is in any way bothersome or, perhaps, "repugnant" to Shaw's heirs and/or assigns, as that is the standard which she has proffered ("I hope it is not your position that creators and owners of intellectual property should be unable to leave anything of value to their spouses and children, or that their heirs should have to endure without remedy uses of their spouses or parents' life work which are repugnant to them.")

Thus, while I find Ms. Stoller's appropriation of "GHOTI" appropriate - charming, even - I am also deeply troubled by her willingness to cede to heirs and assigns a large chunk of the public domain (via the 20 year extension she's advocating) and to foreclose the use of past work by present-day artists, scholars, researchers, etc. whenever an heir or assign finds said use objectionable. I would not begrudge Ms. Stoller her "GHOTI" were she not arguing against my (and everybody's) rights under the Constitution, Section 107, and the 1st Amendment.

Sincerely,

John Logie
Penn State University
<antrobus[_at_]ripco.com> Received on Fri Apr 03 1998 - 10:58:34 GMT